Law enforcement agencies- State, federal and local- routinely must prioritize how their resources are used. It explains why the jaywalker is rarely charged. Deportation proceedings instituted by ICE are no different. The Obama administration’s main argument for issuing an executive order which would, in the practical sense, grant amnesty to an estimated 4 million illegal immigrants is based on the concept of prosecution discretion.
There are about 11.5 million illegal immigrants in this country. In 2011, it was estimated that it would require $200 billion over 5 years to deport them all. ICE estimates that it takes $12,500 to deport a single person. Those costs include apprehension, detention, legal proceedings and transportation. Under the best of circumstances the costs are prohibitive. But because costs are prohibitive and because Congress does not specifically authorize $200 billion over five years for that directed purpose is not justification for an executive order.
The President is sworn under oath to faithfully execute the laws. Immigration laws are no different. While he can conveniently point to the fact that over 2 million people have been deported under his watch, very few of them are those who stand to benefit under the pending executive order. Most of them were recently apprehended illegal border crossers and still more were people whose deportation proceedings were initiated under President Bush.
Proponents of this order point to the fact that Presidents in the past have routinely issued executive orders in the area of immigration that effectively granted amnesty to illegal immigrants living in the United States and they have. However, in practically all of those cases they involved immigrants who arrived here illegally because of political upheaval or natural disasters in their home countries. No class was ever granted amnesty through a presidential executive order because they came here seeking better economic conditions or jobs. One of the biggest amnesties ever offered through executive order benefited the thousands of Southeast Asians fleeing Vietnam after the collapse of Saigon. Cubans fleeing their home country after Castro rose to power is another case. In none of these cases did the numbers approximate those contemplated under the expected Obama order, nor for the same circumstances.
Although they may point to other instances of the executive taking charge in this area, in most of those instances Congress acted soon thereafter to reign in the executive. For example, there was the Temporary Protected Status (TPS) program started in 1990 designed to aid certain national groups whose countries had been ravaged by war or natural disaster. This was, however, a Congressional action designed to reign in previous Executive power grabs. Although codifying what previous administrations were doing, it placed specific restrictions for its future use. Another program is called “deferred action” which grants relief to illegal immigrants on humanitarian grounds or for reasons of convenience. This was used as justification for Obama’s DACA program. However, Congress took authority over this area in 1996 with the passage of the Illegal Immigration and Immigrant Responsibility Act (IIAIRA). And in 2000, the INS said that IIAIRA basically expunged deferred action as a group solution thus implicating the legality of DACA. Deferred action was still permitted, but on an individualized, case-by-case basis.
More troublesome is his purported action that would allow those granted amnesty to seek green cards and obtain work legally. Here, Obama is clearly impinging on a legislative function.
Using the inability of Congress to act on immigration is no justification for unilateral action. There is no national emergency justifying this action. The illegal immigration problem in this country did not occur overnight although the recent arrival of young children at the border from Central America is directly attributable to Obama policies and signals to that population that they would eventually be granted some form of amnesty. Let them know they will be welcome- the law be damned- and they will come. Let them know they are welcome if they follow the rules and go through the process which, admittedly, is in need of reform, and you have some semblance of a controlled border. One should choose some semblance of order over chaos and open borders.
If this executive order goes through, Hispanics should be very wary. Executive orders have no effect of law. Since he is using prosecution discretion as the legal justification for his action, a future president can use their discretion to undo the deferred action. Suppose you are an undocumented immigrant who “comes out of the shadows” under this order. They now have a bright light shined on them. The next president can simply undo the deferred status and let the legal process carry through. What then? If I were Hispanic and in this country illegally I would remain in the shadows knowing that my situation was temporary and subject to the whim of the next president. Either that or I would be praying for immigration reform passed by Congress since Congressional actions do have the force of law.
Obama’s action is most likely “legal,” but it certainly stretches the boundaries of executive authority. As some liberals have noted, it sets an horrendous precedent for future presidents to simply issue an executive order in a plethora of other areas using prosecutorial discretion as a pretext. What’s to then stop the next president from issuing an order directing the IRS not to collect estate taxes? In the end, Obama should think long and hard. But because we are dealing with a narcissistic personality disorder, that is very much in doubt.